STATE OF NEW JERSEY v. ANTOINE D. WATTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTOINE D. WATTS,

Defendant-Respondent.

___________________________________

June 6, 2014

Submitted May 21, 2014 Decided

Before Judges Grall and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-08-0618.

Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Douglas T. Kabak, Assistant Deputy Public Defender, on the brief).

PER CURIAM

By leave granted, the State appeals the Law Division's July 10, 2013 order granting defendant Antoine D. Watts' motion to suppress evidence. We affirm.

I.

On March 14, 2012, members of the Elizabeth Police Department went to a building on Third Street in Elizabeth to execute a no-knock warrant permitting them to search Watts' apartment at that location and Watts personally. An officer viewing the feed from a surveillance camera1 advised Detective Guillermo Valladares that Watts had left the building and was walking south on Third Street. Valladares and other officers stopped Watts as he was leaving a liquor store on the corner of Third Street and Magnolia Avenue.

One or two officers patted Watts down for weapons and also removed the keys to his apartment from his pocket. Valladares and another officer left with the key to search the apartment. Because Valladares believed that conducting a full search of Watts on the crowded street corner would be "overly intrusive" and "a little undignified," Watts was handcuffed and taken back to his apartment building in a marked police car. The two locations were approximately a block apart. According to Valladares, as Watts was getting out of the first patrol car to get into a patrol car that was equipped to transport suspects, Watts started to shake his leg and several bundles of heroin fell out of his pants.2

In August, Watts was indicted for third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count three); and second-degree possession of heroin with intent to distribute within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 (count four).

In September, Watts filed a motion to suppress the evidence. The suppression hearing took place on July 8, 2013. Valladares was the only witness. Following argument by counsel, the judge reserved decision. On July 10, the judge delivered an oral decision explaining his reasons for granting the motion. The implementing order was entered the same day. We granted the State's motion for leave to appeal.

II.

The State presents the following argument on appeal:

POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO SUPPRESS THE FORTY FOLDS OF HEROIN THAT FELL FROM DEFENDANT'S PANT-LEG.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that [the] standard of review on appeal from [a] motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

 
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007) (first three alterations in original).]

Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The State argues that the motion judge misapplied the United States Supreme Court's holding in Bailey v. United States, ____ U.S. ____, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013). That case involved the warrantless search of an individual incident to the execution of a search warrant for the location the individual at issue had recently left. In the case before us, however, the warrant being executed specifically provided for the search of Watts' person in addition to his apartment.

As we held in State v. Bivins, ___ N.J. Super. ___, ___ (App. Div. 2014) (second and third alterations in original),

[w]hen evaluating the constitutionality of police conduct in executing a search warrant, "[i]t is well settled that officers searching a person's home, car or belongings under authority of a search warrant are authorized to use only those investigatory methods, and to search only those places [or persons], appropriate in light of the scope of the warrant." State v. Reldan, 100 N.J. 187, 195 (1985) (citing Harris v. United States, 331 U.S. 145, 152, 67 S. Ct. 1098, 1102, 91 L. Ed. 1399, 1407 (1947)). "An analysis of the reasonableness of the methods used in a search, as well as the areas searched, should focus upon whether the search in its totality was consistent with the object of the search." Ibid.

That analysis begins first with an examination of the terms of the search warrant, which must be strictly respected. [State v. Rockford, 213 N.J. 424, 441 (2013).] Thereafter, the analysis focuses upon police conduct in accomplishing the object of the search. State v. Rodriguez, 399 N.J. Super. 192, 200 (App. Div. 2008).

The warrant at issue here authorized a search of Watts' person and his apartment. Valladares testified that, having observed during their investigation that Watts frequently went in and out of the apartment, the officers decided to stop him shortly after he left his apartment so that they could search him to obtain his key. They wanted to avoid entering without knocking by breaking down the door. The State argues that the first search was merely a pat down for officer safety and to retrieve the key, adding that the busy street corner where he was stopped was inappropriate for a more thorough search.

Watts argues that, having searched him once and found no contraband, the police were not authorized by the warrant to detain him by handcuffing him and placing him in a police car so that they could perform a second search at a different location at some point in the future. That is essentially the position taken by the motion judge, who characterized the initial search as having been done in an "incompetent way." The judge also noted that Valladares was not one of the officers who conducted that search, so there was no evidence as to "what part of the anatomy was searched." Indeed, at the hearing, there was no effort by Valladares to explain how the officers who performed the search were able to satisfy themselves that Watts was not armed and to find the key, without noticing the heroin that subsequently "tumbled" out of his pants. Based on the totality of those circumstances, the judge concluded that the police officers had no right to hold Watts in custody after that point.

Based on our reading of Bailey, we agree. The existence of the warrant specifically allowing a search of Watts clearly permitted the police to search Watts when they stopped him, even though he was no longer in or adjacent to his apartment. In other words, it solved the Bailey problem they would otherwise have had if there had been no warrant for a personal search. But, having searched Watts and found no contraband, none of the factors permitting the detention of occupants of an apartment during a search justified the handcuffing and continued detention of Watts.

The police already knew Watts was not armed, so officer safety was not an issue. Bailey, supra, ___ U.S. at ___, 133 S. Ct. at 1039-40, 185 L. Ed. 2d at 29-31. Watts was not in the premises and did not have access to them, so he would not have been able to "hide or destroy evidence, seek to distract the officers, or simply get in the way." Id. at ___, 133 S. Ct. at 1041, 185 L. Ed. 2d at 31. And, because they had found no contraband on his person and received no report that any had been found in the apartment,3 the third law-enforcement interest, prevention of flight, was not applicable. Id. at ___, 133 S. Ct. at 1040, 185 L. Ed. 2d at 32.

As the Supreme Court held in Bailey, the flight element should not be read too broadly, lest it lead to the loss of rights guaranteed by the Constitution.

The concern over flight is not because of the danger of flight itself but because of the damage that potential flight can cause to the integrity of the search. This interest does not independently justify detention of an occupant beyond the immediate vicinity of the premises to be searched. The need to prevent flight, if unbounded, might be used to argue for detention, while a search is underway, of any regular occupant regardless of his or her location at the time of the search. If not circumscribed, the rationale of preventing flight would justify, for instance, detaining a suspect who is 10 miles away, ready to board a plane. The interest in preventing escape from police cannot extend this far without undermining the usual rules for arrest based on probable cause or a brief stop for questioning under standards derived from Terry. Even if the detention of a former occupant away from the premises could facilitate a later arrest should incriminating evidence be discovered, "the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, [2414,] 57 L. Ed.2d 290[, 301] (1978).

[Id. at ___, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32.]

Acknowledging that the detention of someone in the premises being searched amounts to a "limited intrusion on personal liberty," id. at ___, 133 S. Ct. at 1042, 185 L. Ed. 2d at 34, the Supreme Court in Bailey took a different view with respect to the detention of someone being held outside the premises.

Where officers arrest an individual away from his home, however, there is an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest. As demonstrated here, detention beyond the immediate vicinity can involve an initial detention away from the scene and a second detention at the residence. In between, the individual will suffer the additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest. The detention here was more intrusive than a usual detention at the search scene. Bailey's car was stopped; he was ordered to step out and was detained in full public view; he was handcuffed, transported in a marked patrol car, and detained further outside the apartment. These facts illustrate that detention away from a premises where police are already present often will be more intrusive than detentions at the scene.

[Id. at ___, 133 S. Ct. at 1041, 185 L. Ed. 2d at 33.]

In this case, Watts was arrested on a public street, searched once, handcuffed, put in a marked police car, driven the short distance to his apartment building, and then transferred to another marked police car. We agree with the motion judge that there was no satisfactory explanation of why the second search was necessary. Our reading of Bailey convinces us that it was impermissible under the then existing circumstances. It was also inconsistent with the terms of the search warrant, which allowed a search rather than multiple searches.

Our review of the record, based on the totality of the circumstances and giving required deference to the judge's fact finding at the hearing, leads us to the conclusion that his decision to suppress the evidence in this case was not erroneous.

Affirmed.

1 The camera took a series of still pictures rather than a video.

2 Valladares did not witness the discovery of the drugs directly, but testified that he subsequently observed it by reviewing the series of pictures taken by the surveillance camera, which were shown during the suppression hearing.

3 There is nothing in the record to suggest that any drugs were found in the apartment following the search.